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On 24 March 2026, a mediation took place before Kerry Stewart. During that mediation, the Defendant made an offer of $XXX (plus costs as agreed or assessed). The Plaintiff’s tutor gave instructions to accept the offer and the matter resolved. In the circumstances of the Plaintiff’s neurological condition, he seeks, through his tutor, approval of the settlement.

Evidence

3. In support of the application for approval of the settlement the Plaintiff relies upon five affidavits:

4. Margaret Dopper, the Plaintiff’s wife, affirmed 25 June 2026;

5. Nicholas Dopper, the Plaintiff’s son and tutor, affirmed 1 July 2026;

6. Stephanie Donnelly, the Plaintiff’s daughter, affirmed 25 June 2026;

7. the first affidavit of Nicola Celeste Whiting, the solicitor who acts for the Plaintiff in these proceedings, affirmed 23 June 2026; and

8. the second (confidential) affidavit of Ms Whiting, which concerned legal costs and disbursements, affirmed 23 June 2026.

9. Annexed to the first affidavit of Ms Whiting were a considerable number of medical reports as well as a confidential opinion on settlement provided by Ms Moiseidis of Counsel who represented the Plaintiff in these proceedings.

10. In determining whether to approve the proposed settlement, I have considered this affidavit evidence, including the annexed medical reports and, in particular, the confidential opinion of Counsel.

Background

6. The Plaintiff was born in January 1943. He was 78 years of age at the time of the events which gave rise to his claim in this Court.

7. His medical condition prior to the occurrence of his stroke involved the implantation of a permanent pacemaker for sick sinus syndrome on a background of atrial fibrillation on 21 March 2014 at Condobolin District Hospital. He was anticoagulated with the anticoagulant medication Dabigatran.

8. In 2015 he had a right total knee replacement.

9. The clinical records of Condobolin District Hospital record that, in November 2019, the Plaintiff experienced a right sixth cranial nerve palsy, for which he underwent a CT of the brain.

10. The Plaintiff had pacemaker reviews at Orange Base Hospital cardiology in November 2020 and November 2021. Each review demonstrated long episodes of atrial fibrillation.

11. On 3 December 2021, the Plaintiff had an ultrasound which suggested he suffered carpal tunnel syndrome. This was against a background of long-standing bilateral wrist pain, left finger tingling and the occasional loss of power. He attended a surgical consultation on 9 December 2021, at which time surgery was recommended for left carpal tunnel syndrome with some compromise of the left ulnar nerve function at the wrist.

12. The surgery was scheduled to take place on 22 December 2021. The Plaintiff’s Dabigatran was ceased approximately 48 hours beforehand. The left carpal tunnel decompression took place under general anaesthetic at Dudley Private Hospital. The Plaintiff was discharged the same day. Hours after the surgery, he developed numbness of the left arm and left side of his face, blurred vision and dysarthria. He felt slow and dizzy for the remainder of the evening. The next day he recommenced taking the Dabigatran. His overnight symptoms had resolved by the morning and no medical attention was sought.

13. On 26 December 2021, four days after the surgery, the Plaintiff presented for the first time at Condobolin District Hospital and was triaged. He had left-sided leg and facial numbness as well as a headache since discharge, which headache he noticed mainly when walking. He was assessed by Dr Martin Hua via audiovisual link (AVL). Dr Hua recorded that he explained the risk of transient ischaemic attack (TIA) and that neuroimaging would be needed to confirm whether one had occurred. He further explained that a TIA can be a sentinel event for a major stroke and also offered to transfer the Plaintiff to Orange Base Hospital for review and investigation. The Plaintiff declined the offer and was thereafter discharged.

14. On the morning of 28 December 2021, the Plaintiff presented for the second time at Condobolin District Hospital and was triaged. He was unsteady on his feet, had facial numbness and slurred speech. Dr Benjamin Canalese assessed the Plaintiff via AVL, relying on the nurse’s examination. Dr Canalese recorded that the left-sided weakness discussed two days earlier was no longer present but that the Plaintiff felt “washed out”, “unsteady on his feet” and was having trouble focussing on the newspaper. He advised the Plaintiff to present to a facility with a face-to-face doctor (and, preferably, a CT scan) for formal neurological examination. The Plaintiff was discharged without a diagnosis or a plan.

15. Later that day, the Plaintiff was admitted to Orange Base Hospital with symptoms of intermittent left-sided hemiplegia. A CT scan was performed and the following was reported:

There are patchy areas of grey matter hypodensity involving the right cerebral hemisphere within the lateral frontal lobe towards the vertex and the right parietal lobe extending into the occipital lobe. These would be in keeping with subacute areas of infarction. There is some gyriform high density associated with the parieto-occipital infarct in keeping with petechial haemorrhage. No large haematoma is seen. No [infarct] is seen within the basal ganglia, brain stem, cerebellum or left cerebral hemisphere. The infarcts have developed since the previous CT of 12/11/19. The ventricular system is within normal limits. Subarachnoid spaces are normal. There is no midline shift. No subdural collection is seen.

CONCLUSION: Subacute areas of infarction involving the right MCA and PCA territories with areas of petechial haemorrhage but no large haematoma or mass effect.”

16. Dr Leon Ong acted on the report and arranged for the Plaintiff to be reviewed with likely admission for full stroke work up. Dr Gabriel Gurieff concluded that the CT results were likely caused by a cardioembolic stroke in the context of atrial fibrillation.

17. The Plaintiff was admitted to the care of cardiologist Dr Jude Olinga. Anticoagulation with Dabigatran was to continue and no neurology consultation was requested. Although Dr Gurieff recommended that an MRI take place the next day, 29 December 2021, the Plaintiff refused due to his severe claustrophobia (it should be added that his pacemaker would further complicate any MRI).

18. The Plaintiff was discharged to the care of his family on 29 December 2021. The plan on discharge consisted of continuing his regular medications (including Dabigatran), no driving for four weeks post-stroke, GP review in one week, and instructions to return to an emergency department should the Plaintiff experience certain symptoms.

19. On 2 January 2022, the Plaintiff returned to Orange Base Hospital emergency department. He reported ongoing intermittent left facial numbness but no new complaints. The Plaintiff was reviewed by Dr Benjamin Needham, who assessed him as asymptomatic and safe for discharge.

20. The next day, the Plaintiff again presented to Orange Base Hospital emergency department, this time with deteriorating symptoms. He was experiencing worsening left facial numbness, left facial droop, dysarthria and left arm paraesthesia. A CT angiogram was performed. The Plaintiff’s infarcts were slightly more conspicuous and the potential petechial haemorrhage had minimally increased. The Plaintiff was admitted to the coronary care unit under Dr Jian Cheng. He was discharged on 5 January 2022, with his anticoagulation regime switched from Dabigatran to Apixaban.

21. It appears that the Plaintiff’s condition worsened over the balance of January through to March. On 17 March 2022 the Plaintiff was assessed whilst an inpatient at Dudley Private Hospital. By this stage, he was wheelchair-bound, relied on a hoist and sling and also required maximum assistance for showering and dressing. He grieved his loss of independence. He could not recall his medications, and his family had assumed management of his finances. He was approved for permanent residential care and residential respite high care, with the long-term goal of returning home (though this would require an accessible home closer to community services).

22. The Plaintiff was at some point admitted to Ascott Gardens Aged Care Facility in Orange. It is not clear precisely when this occurred, but that is not, for present purposes, significant. The Plaintiff’s wife relocated from Condobolin to a rental property in Orange to be closer to her husband, later selling the Condobolin home.

Commencement of the proceedings

23. The Plaintiff, through his tutor, commenced these proceedings on 14 May 2025 by the filing of the Statement of Claim against the Defendant, being the local health district responsible for the acts and omissions of Condobolin District Hospital and Orange Base Hospital.

24. By that Statement of Claim, the Plaintiff alleged that the Defendant breached its duty of care in failing properly to review, recognise the significance of, and properly respond to the Plaintiff’s symptoms each time he presented to hospital. It is further alleged that the Defendant was wrong to discharge the Plaintiff on 26, 28 and 29 December 2021 without a diagnosis or adequate treatment plan.

25. On 28 October 2025, the Defendant filed its Defence, in which it steadfastly denied that its conduct caused any harm to the Plaintiff and that, in any event, the scope of the Defendant’s liability did not extend to the harm allegedly suffered by the Plaintiff. Beyond this, the Defendant asserted that any injury was the materialisation of an inherent risk which the exercise of reasonable care and skill could not have been avoided.

The evidence

26. The Plaintiff and Defendant each relied on expert evidence.

27. There were considerable areas of disagreement between the parties’ respective experts. Those disagreements centred on the following issues:

28. diagnosis and mechanism of injury;

29. timing of onset of injury;

30. whether a CT angiogram would have demonstrated a large vessel occlusion;

31. stroke severity;

32. whether there was an intracerebral haemorrhage on 28 December;

33. the eligibility of the Plaintiff for clot retrieval;

34. the adequacy of care at the Condobolin District Hospital; and

35. the counterfactual outcome.

Professor Gericke

28. The Plaintiff relied upon the 20 April 2025 report of Professor Christian Gericke, consultant neurologist and epileptologist on the question of liability; and the report of Ms Kate Morris, an occupational therapist, on the quantum of damages.

29. Professor Gericke is a consultant neurologist and epileptologist of over 25 years’ standing. He is a Clinical Professor of Medicine at the Australian National University and Convener of the Commonwealth Specialist Medical Review Council.

30. In Professor Gericke’s opinion, three cerebrovascular ischaemic events occurred on 26 December 2021, 28 December 2021 and 3 January 2022. The probable common cause of those events was long-standing atrial fibrillation and sick sinus syndrome.

31. Professor Gericke observed that the Plaintiff was on a low-dose Dabigatran regime without any apparent co-morbidity which would require it, and that the cardiologist’s records were not provided. He stated that on 26 December 2021, the Plaintiff’s symptoms were not recognised as a TIA, so no TIA or stroke work up was initiated, nor was a referral for specialist medical opinion made. In Professor Gericke’s opinion, either of those would have been appropriate. He considered Dr Ong’s 28 December 2021 hypothesis that the Plaintiff’s symptoms were attributable to a general anaesthetic administered six days earlier was “clearly erroneous” because such symptoms would not produce focal deficits and would not persist beyond 24–48 hours. In Professor Gericke’s analysis, neither early Parkinson’s disease nor osteoarthritis of the knee explained the focal signs that Dr Ong himself recorded. The right-sided intention tremor, dysdiadochokinesis and past pointing indicated a lesion of the right cerebellum or its pathways and are fully explained by the ipsilateral PCA territory infarct, so that the clinical findings and the neuroimaging were congruent for a disabling stroke. The plan to discharge the Plaintiff in the event of a normal CT was congruent with an erroneous premise. Professor Gericke opined that the incorrect premise produced the incorrect conclusion.

32. Professor Gericke considered that a stroke protocol CT brain with CT angiography and CT perfusion should have occurred. In his opinion, the results of those tests should have been discussed with the regional on-call stroke neurologist, who would have determined eligibility for endovascular thrombectomy. Thrombolysis would have been contraindicated by the Dabigatran under the guidelines then in force. The Plaintiff should not have been discharged on 29 December 2021. Professor Gericke also considered that, since the stroke occurred while the Plaintiff was taking Dabigatran, most neurologists would have also changed the anticoagulant medication, although he accepts that this is not supported by randomised evidence or the guidelines.

33. As to the possibility of clot retrieval, Professor Gericke first noted that it had to be performed within 24 hours of onset. In his opinion, that was ample time to transfer the Plaintiff to a Sydney hospital before 2.45pm on 29 December 2021. He considers that, more likely than not, clot retrieval on 28 or 29 December 2021 would have drastically improved the Plaintiff’s functional outcome.

Professor Simon

34. An opposing report was provided by Professor Neil Simon, neurologist and Clinical Professor at Macquarie University. Professor Simon reviewed the imaging of 28 December 2021, 3 January 2022, 25 January 2022, 3 March 2022 and 24 March 2022. He considered that the nature and timing of the Plaintiff’s injury was a perioperative right MCA territory stroke, likely from a cardiac embolus related to the known atrial fibrillation around the time of surgery. He continued that the symptoms on the day of the surgery reflected stroke rather than TIA and that the mechanism for injury was either an embolus which occluded the right MCA and subsequently autolysed or broke up immediately and blocked more distal tributaries. Further, in his opinion, the images of 28 December 2021 and 3 January 2022 showed no progression but rather the expected evolution of an existing stroke with a small amount of haemorrhagic transformation.

Dr Robert Morton and Professor Bernard Yan

35. The Defendant also served reports of Dr Robert Morton, a rural general practitioner, and Professor Bernard Yan, a neurologist and endovascular neurointerventionist.

36. Dr Morton considered the assessments on 26 and 28 December 2021 and expressed peer professional opinion that the staff at Condobolin District Hospital acted in a manner which was, at the time the service was provided, widely accepted in Australia by peer professional opinion as competent professional practice. He addressed each particular in paragraph 51 of the Statement of Claim, responding in substance that the assessments at both admissions were complete and thorough; that a TIA was considered at the first admission and imaging advised; that the anticoagulation was reviewed at both admissions; that a TIA or stroke could not be diagnosed at Condobolin District Hospital because there were no localising symptoms and no CT scanner; and that the discharges were appropriate.

37. Professor Yan is an Academic Professor of Neurology at the University of Melbourne and the Immediate Past President of the Stroke Society of Australasia. He is a practising neurologist and endovascular neurointerventionist at the Royal Melbourne Hospital. Professor Yan also reviewed the imaging of 28 December 2021 and 3 January 2022 and agreed with the findings of the radiologist made at that time. He considers that the most likely cause of the injuries suffered by the Plaintiff was cardioembolism secondary to atrial fibrillation. His analysis turned upon four cumulative eligibility criteria for clot retrieval drawn from the American Heart Association/American Stroke Association 2019 guidelines. In applying these criteria he considered that, as at 26 and 28 December 2021, the Plaintiff had no neurological deficits on examination and so failed criterion 3 of the eligibility criteria. Because of this, Professor Yan opined, offering clot retrieval would have been in violation of the guidelines and a significant departure from accepted clinical practice.

38. As to quantum, the parties’ respective occupational therapists agreed that the Plaintiff requires high level residential care but disagreed as to the date of the incident and other matters.

Consideration

39. The principles which inform the Court’s assessment of a proposed settlement are well established. It will not enforce a compromise against the opinion of the tutor for the person under legal incapacity and his or her legal adviser: Re Birchall (1880) 16 Ch D 41; Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (Mills) at 4 [19] (Hammerschlag J). The Court “must form the view that it is beneficial to his or her interests”: Mills at 5 [29]. Considerations relevant to the compromise include matters such as litigation risk, the desirability of early finality, and the avoidance of the risk of further distress: Brown v Western NSW Local Health District [2026] NSWSC 51 at [22] (Chen J).

40. A confidential advice has been prepared by Ms Moisidis of Counsel, who is extremely experienced in the field of, inter alia, medical negligence litigation. I am not bound by Ms Moisidis’ confidential advice: Mills at [29]. However, it is clear to me that she has carefully considered the expert evidence which informed the evidential matrix and has provided what I respectfully consider to be a carefully analysed and comprehensive opinion as to the Plaintiff's prospects both as to liability and quantum.

41. Having considered the evidence set forth above, the material in the court book and the confidential advice of Ms Moisidis, with which I respectfully agree, I am comfortably satisfied that the proposed settlement in favour of the Plaintiff is appropriate, reasonable, falls well within the range of likely outcomes, and should be approved. In so finding, I have also considered the confidential affidavit as to costs and am aware of the net amount that will be received by the Plaintiff.

42. As to the management of the funds the Plaintiff's wife, Margaret Dopper, holds a power of attorney for her husband executed on 5 February 2008. Ms Dopper, together with Ms Donnelly, has been responsible for managing the Plaintiff’s financial affairs since late-December 2021. Ms Dopper deposes, in paragraph 16 of her affidavit, that, as his power of attorney, she has authority to manage the Plaintiff's finances and is also aware that Ms Donnelly is the alternative power of attorney to so act if Ms Dopper predeceases the Plaintiff or is otherwise unable to act.

43. Ms Dopper deposes that the funds will be used solely for the Plaintiff’s benefit to pay for his care, medical treatment and other living expenses for the balance of his life. She also undertakes to invest the settlement sum in an interest yielding account and to operate such account as a joint signatory with Ms Donnelly for the Plaintiff’s sole benefit for the remainder of his life. I have also considered the affidavit of Ms Donnelly, which is, relevantly, in similar terms, to that of her mother. I propose to incorporate these some of these matters into the orders.

Orders

44. I make the following orders:

45. The Court notes that the matter has settled subject to approval, in accordance with the terms of a Consent Judgment executed on 22 April 2026 by the legal representatives of the parties.

46. Approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).

47. The Judgment Sum referred to in Order 6, less the deductions referred to in Orders 8 and 9, is to be paid to Margaret Dopper and Stephanie Donnelly as joint financial managers of the net Judgment Sum to be managed for the benefit of the Plaintiff, pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW), such funds to be held in an interest yielding account by the joint financial managers as joint signatories.

48. Pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW), the gap in respect of solicitor client fees to be paid by the financial managers, appointed as per Order 3, to the Plaintiff's solicitors from the settlement sum within 7 days of receipt by the Plaintiff of a memorandum of costs and disbursements showing the balance owing, after payment of party/party costs by the Defendant agreed at $XXX.

49. The confidential material placed before the Court on behalf of the Plaintiff will be retained by the Court in an envelope marked "only to be opened by order of a Judge".

50. Judgment for the Plaintiff against the Defendant in the sum of $XXX (the Judgment Sum).

51. The Defendant to pay the Plaintiff's party/party costs and disbursements agreed at $XXX to the Plaintiff's solicitors within 28 days of the entry of Judgment.

52. The Defendant shall be at liberty to deduct and pay from the Judgment Sum any moneys repayable by the Plaintiff to any person or body whether in respect of Social Services, Health Services or otherwise concerning which any demand or notice has been or will be served on or given to the Defendant or their solicitor or insurer.

53. The Defendant is further authorised to deduct from the Judgment Sum and pay to the relevant person or authority:

(a) Any amount due to the Department of Aging, Disability and Home Care (DADHC) in the event that the value of services provided in respect of the Plaintiff's claim are deemed to be repayable; and (b) Any amount due to any other party, including but not limited to, the Department of Veteran’s Affairs, any Private Health Insurance companies, in the event that the value of services provided in respect of the Plaintiff are deemed to be repayable.

10. The Plaintiff undertakes and agrees to pay out of the Judgment Sum any moneys repayable by the Plaintiff to any person or body whether in respect of Social Services, Health Services or otherwise which may not have been paid by the defendant pursuant to Orders 8 and 9 and also to pay to any third parties entitled, all outstanding medical, hospital, ambulance and other out of pocket expenses.
11. After the deductions referred to in Orders 8 and 9, and pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW), the Defendant is to pay the balance of the Judgment Sum into an interest-bearing bank account nominated by the Plaintiff's appointed financial managers.
12. If, after the payment of the Judgment Sum, any further notice of charge is received and is payable by the Defendant in relation to services received by the Plaintiff relevant to this claim, the Plaintiff will repay the Defendant any amount the Defendant is required to pay, and/or indemnify the Defendant in respect of such amounts.
13. Payment of the Judgment Sum will not be due, and no interest shall be payable in respect of the Judgment Sum, if it is paid within 28 days after whichever of the following events occurs last:

(a) Entry of judgment by the Court; and (b) Where there is no advance payment to the Commonwealth under the Health and Other Services (Compensation) Act 1995 as amended, the receipt by the Defendant of a valid Medicare Notice of past benefits or notice of charge in accordance with the Act and a duly completed Medicare Compensation Recovery Notice of Judgment or Settlement form; or (c) Where there is to be a 10% advance payment to the Commonwealth under the Health and Other Services (Compensation) Act 1995 as amended, the receipt by the Defendant of a duly completed Medicare Compensation Recovery Notice of Judgment or Settlement form and a Medicare Compensation Recovery s 23A statement signed by the Plaintiff; and (d) Receipt by the Defendant or its insurer of a final notice from Centrelink (Department of Human Services), informing it of the amount of the payback or of the fact that no moneys are repayable.

14. The Court notes that the parties agree that these terms are not to be disclosed except in the following circumstances:

(a) As required by law; or (b) Where the Defendant seeks contribution or indemnity from a party; or (c) A copy of these terms is provided to Centrelink (Department of Human Services) in relation to the determination of any refund.

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